Posts Tagged ‘british nationality act’

Legislative History of INA § 301(g) Proves Mark Levin WRONG About Ted Cruz

February 6, 2016

This article was published by World Net Daily. It is an important legal memorandum and simplifies the constitutional questions of how statute affects terms of art in the original text:

Opinion: Leonard A. Daneman on Ted Cruz Eligibility

http://www.wnd.com/2016/02/ted-cruzs-eligibility-tied-to-womens-rights-movement/

Legislative History of INA § 301(g)

The Citizenship of Ted Cruz Tied to Women’s Rights Movement

[Personal Note:   Why should I care? That is the $10 Trillion Question. If the Obama presidency had been blocked by the ‘birthers,’ perhaps our National Debt wouldn’t have doubled!

My response to Ms. Clemon’s comment summarizes the legal question: “So, the question is if the Harvard article or mine is in the public interest: Does the introduction of foreign nationality to a child who claims being a natural born citizen benefit the presidency viz Article II, or the singular citizenship of a child born of two U.S. citizens as it was from the beginning satisfy the intent of the framers?”

Here is another salient point: If the nationality of the father is inconsequential, then only the citizenship of the mother matters. After all, a child of a U.S. citizen father or alien father is eligible as long as the mother was a U.S. citizen!

How about Prof. Lawrence Tribe, who put so much weight on ‘native born’ that a child of two aliens, legal or illegal, is eligible to the presidency, just as long as they were born on U.S. soil.

Modern Americans have a ‘perception’ of Naturalization; not real knowledge. When you mention naturalization, they think of a courtroom with a U.S. flag and a line of new immigrants with their right hands raised giving the oath of allegiance.

Hopefully, after you read this article  (about 1700 words) on naturalization and repatriation of married women with children, you will understand that the framers would have never intended the child of an alien father eligible to the presidency; even if a so-called ‘citizen at birth.’ Alexander Hamilton proposed a version of Article II that specified a child ‘born a U.S. citizen,’ but John Jay insisted on a ‘natural born citizen,’ which cannot be created or changed by naturalization Law.

Ted Cruz’ citizenship through his mother was created by Naturalization Law. The 1952 statute separated him from Canadian citizenship upon moving to the U.S. at age four, and repatriated him through his mother. And so he is not eligible to run for the presidency.

Naturalization laws that gave Ted Cruz citizenship rights from birth were and still can be altered and changed, man-made. However, birth from two U.S. citizen parents is outside and independent of man-made law, and therefore a ‘natural’ born citizen.]

The following shall be nationals and citizens of the United States at birth:

INA § 301 g. a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States.

Not all, but many legal professionals conclude that because Ted Cruz was a ‘citizen at birth,’ he is Article II eligible to the presidency.

However, at the time of the framers there were only four ways to become a citizen:

  1. You were a citizen of one of the states at the time of adoption of the  constitution
  2. You were born to a U.S. citizen father (more on the mother later)
  3. Your father naturalized while you were a minor child
  4. You naturalized after reaching the age of majority

Under both our First Uniform Naturalization Act of 1790 and the British Nationality Act of 1772, a child was the same foreign nationality as the father. Children were born with the father’s nationality through sanguinity, through blood, a legitimate and natural inheritance.

Now, consider this fact: That at the time of the framers and over 100-years of our history, Ted Cruz would have only become a citizen of the United States under #4 in the list above.

Based on both British and United States law, even if the mother was born a U.S. citizen, being married to a Canadian or British subject her child born in the United States would not be a U.S. citizen. And Ted Cruz was born in Canada.

So, I ask you the following:

  1. Would the framers and Article II as written and intended consider Ted Cruz a natural born citizen?
  2. Under 1930’s naturalization law, did repatriation to the United States of a mother with minor children, married to an alien father, revise Article II as written and intended? (See Intermediate Scrutiny Test)

The answer to both is ‘No.’

While naturalization law was once uncomplicated, the women’s rights movement unintentionally created a dichotomy in the legal doctrine of sanguinity, requiring an expansion of naturalization laws to deal with dual nationality at birth and repatriation.

What is Naturalization?

The Illinois Board of Elections decided that Ted Cruz was a natural born citizen. “The board distinguished between natural born and naturalized citizens, pointing out that Cruz did not have to take any steps to go through a naturalization process at some point after birth.”

By ‘process’ the board makes a common mistake, only seeing naturalization as that of an adult renouncing one citizenship (Ted Cruz renounced Canadian citizenship in 2014) and being permitted to take the Oath of Allegiance for U.S. citizenship. However, there is more to naturalization, as can be seen in the extensive body of law.

A minor’s nationality is affected by actions of parents; and which parent’s citizenship applies to the child comes under naturalization law. What happens when the child is born in another country, or to one alien parent? What happens when the child lives as one nationality, but before reaching the age of majority wishes to assume the other? This is also naturalization and includes numerous conditions and requirements as part of the legal ‘process.’

Minor vs Happersett (1875) declared, in a case involving a woman’s right to vote, it was ‘never doubted’ that the child of two U.S. citizen parents was a natural born citizen. And to this day it is still only that particular birth circumstance (even if born outside the U.S.) that produces a citizen naturally, without having to remove dual nationality of the minor with naturalization law.

The Evolution of Naturalization Law and Dual Nationality

The 14th Amendment is best-known for its ‘born in the United States’ and ‘equal protection’ clauses. However, it was written specifically for children born of freed black slaves. Because the father had no national allegiance or citizenship to confer to his children (See Dred Scott, and the 1866 Civil Rights Act) the legislature had to rely on, for the first time in U.S. naturalization law, birth on U.S. soil (jus soli).

The 19th and 20th century saw changes in the institution of marriage, racial inclusion, and legitimization of nullius fillius (children of unwed mothers) that required broader applications of sanguinity (inheritance by blood) if not a complete departure from it (1898). The application of ‘equal protection’ to sanguinity, until then only through the husband, created the previously unheard of concept of Dual Nationality.

Women’s Claims to Equal Citizenship Rights 1922-1940

Yale Law Journal Volume 123 Number 7, p. 2134-2573 ‘Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,’ Kristin A. Collins

The reaction of some committee members to women’s claims to gender equality reveals a strong commitment to those traditional modes of regulating nationality. For example, in 1922, Richard Flournoy—then an assistant solicitor in the Department of State and later a member of the interdepartmental committee—found the idea that a married woman would maintain her American citizenship upon marriage to a foreigner “very objectionable” on the ground that it was “obviously a direct blow at the principle of family unity”—a reference to the principles of coverture[1] that resulted in women’s loss of independent civil identity upon marriage. In 1934 Congress passed a statute that gave American women the ability to transmit citizenship to their foreign-born children with no explicit racial limitations.

A Woman’s Loss of U.S. Citizenship: Laws of Coverture

Prior to modern women’s rights, when a woman married a man she assumed a subordinate legal status to that of the husband. Before today’s no-contest divorce, communal property, and intestate succession laws, inheritance laws didn’t give a woman equal rights to property; they favored the husband’s side of the family.

In the same light, if marrying an alien she lost her U.S. citizenship. So, from the time of the framers and into the 1930’s, it was understood that only a U.S. citizen husband produced U.S. citizen children, natural born through sanguinity, father and mother together.

American women who married an alien would not only lose U.S. citizenship but produce alien children (1922):

  • 369. (a) A woman who has lost her United States citizenship by reason of her marriage to an alien eligible to citizenship or by reason of the loss of United State citizenship by her husband may, if eligible to citizenship and if she has not acquired any other nationality by affirmative action, be naturalized upon full and complete compliance with all requirements of the naturalization laws, with the following exceptions: . . . (Repealed by act Oct. 14, 1940)

The 19th Amendment finally extended the vote to women in 1920. The 1922 Cable Act permitted repatriation to the United States if an American woman lost citizenship by marrying a foreigner. Her children would then gain U.S. citizenship with her. Other challenges were based on the ‘equal rights clause’ of the 14th Amendment, successfully comparing Coverture to slavery.

Over time, the legal doctrine of Coverture was finally eliminated. However, the retention of pre-marital U.S. citizenship created a bifurcated marriage, a dichotomy of nationalities requiring new naturalization laws to determine the child’s nationality and citizenship throughout the course of the marriage/dissolution, until the child reached the age of majority. In fact, Obama had three nationalities from birth to reaching adulthood.

However, to this day a ‘natural born citizen’ must be interpreted how the framers chose it to mean, and why; children of U.S. citizens without alienage had no possible foreign allegiance or affiliation. As specifically expressed by John Jay to George Washington, this was to avoid ‘foreign intrigue’ from the highest office of the land. Only a U.S. citizen ‘naturally born’ was immune from changes in naturalization law, natural law versus naturalization.

1933 Statute for Child Born Outside the United States Not a ‘Citizen at Birth’

Any child hereafter born out of the limits and jurisdiction of the United States whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United Sates previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and reside therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child’s twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service of the Department of Labor. Am. June 10, 1933, Ex. Or. 6166, § 14; and May 24, 1934, c. 344, § 1. 48 Stat. 797. [emphasis added]

The term ‘citizenship at birth’ was not yet applied in the law.

Ted Cruz was Born December 22, 1970

Finally, the phrase ‘citizen at birth’ is used in the law.

The laws grew to accommodate women giving birth to children with dual nationality; specifically the 1940 statutes were repealed and replaced in 1952, 8 U.S.C. § 1401(a)(7) [INA § 301(a)(7)] as originally enacted by Act of June 27, 1952;

The following shall be nationals and citizens of the United States at birth:

[A] person born outside the geographical limits of the United States and its outlying possessions of parents, one of whom is a non-citizen, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totally not less than ten years, at least five of which were after attaining the age of fourteen years.

That law was liberalized and codified in 1986 as INA § 301(g); 8 U.S.C. § 1401(g).

Through women’s rights and equality protection under the law, the concept of sanguinity was extended through the mother as it was, previously, only through the father; however dual nationality was a concept completely foreign to the framers and is, as you can see, the reason for the vast body of naturalization law necessary to remove any alienage created in a child at birth, or even temporary loss of citizenship due to unintentional expatriation of the mother. Only a natural born citizen, a child of two U.S. citizen parents, is immune from and undefined by naturalization law.

 

The Transition from Jus Soli — Obama NOT a Natural Born Citizen

October 18, 2011

Why Challenging Wong Kim Ark/14th Amendment Soil Citizenship is Essential, and Critical to the Question of Obama’s Article II Eligibility

Ask anyone, from average citizen to presidential candidate, and they will tell you birth on U.S. soil is all that is required to become a citizen at birth. They will also agree if you suggest that a citizen at birth is the same thing as a ‘natural born citizen.’

If pressed further, they will cite the 14th Amendment’s ‘born in the United States’ clause.

This blog article proves them WRONG.

The 14th Amendment’s “born in the United States and subject to the jurisdiction thereof” clause was adapted directly from the 1866 Civil Rights Act as applying to children of black slaves emancipated by proclamation and the successful outcome of the Civil War. As property, slaves had no nationality and therefore their children were also stateless. The 14th Amendment and the 1866 Civil Rights Act guaranteed equal rights of U.S. citizenship by recognizing children of slaves and former slaves born on U.S. soil were “not subject to any foreign power,” and therefore solely ‘subject to the jurisdiction’ of the United States.  

According to existing U.S. naturalization law, from 1790 through 1855, minor children of aliens were not U.S. citizens until their parents naturalized, i.e., renounced foreign jurisdiction over their nationality. (Citation omitted. See previous blogs for full text of law.)

However, in 1898 Wong Kim Ark misinterpreted that clause and inserted feudal English law as adjudicated in the 1608 Calvin’s Case, and practiced as a general principle by the American colonies until their First Uniform Naturalization Act of 1790 legislated in the first Congress of the United States.

The ‘soil birthright’ of citizenship declared by Wong Kim Ark (by ignoring the effect ‘under the jurisdiction thereof’ has on nationality law) created our illegal immigration and chain migration, a problem to such an extent that illegal immigration has become the de facto method of immigration. Legal immigration statistics in 2010 show only 1.04 million Legal Permanent Residents[1] on the road to naturalization. In comparison, illegal immigration has been estimated to be 13 million in 2000, increasing 500,000 annually.

Conclusion:  The Wong Kim Ark decision destroyed U.S. naturalization law through violation of constitutional law, jurisprudence, and existing legislated act, thus creating the illegal immigration problem. Chain migration out of illegal immigration is the de facto method; legal immigration practically extinct. Wong Kim Ark[2] is followed law, but invalid and must be repealed.

It is also why most Americans and ‘experts’ automatically think Obama is a ‘natural born citizen’ merely by his claim of Hawaiian birth. 

The Transition from Jus Soli

For over a century, the American colonies were limited to children born on their soil being natural born subjects under the British monarch. From ancient times, jus soli was the eternal allegiance from birth of a child to the protection, ‘within ligeance,’ of the King.

However, with the Magna Carta (1200s), permanent allegiance from birth was disavowed, and the right of children of subjects born outside British territory to be natural born British subjects children was provided by law as far back as 1350.

The 1772 British Nationality Act declared children born of British subjects outside the ‘ligeance’ of the crown be natural born subjects;[3] and that is the law that we must apply to Obama’s birth circumstances. (See quotes below on ‘originalist’ interpretation of the constitution.)

Natural Born Citizen in U.S. Law

The term of art, Natural Born Citizen, appears in the constitution once, as applied to elements of qualifications of eligibility of a presidential candidate. Similarly, the term of art appeared only once in a Supreme Court holding, defining it ‘without doubt’ as children born of two U.S. citizens.[4]

Unfortunately, the term of art ‘natural born citizen’ has become ‘idiomatic’ with a meaning diluted by both time and judicial error, as merely born in the United States. Thomas Jefferson and James Madison warned of such error:

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. –Thomas Jefferson to William Johnson, 1823

In a letter to Henry Lee on June 25, 1824, James Madison wrote:

. . . I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.

Madison continued, acknowledging the “changes to which the words and phrases of all living languages are constantly subject”, he stated:

What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.

Born, or Naturalized?

Under U.S. law, a citizen at birth may be solely of U.S. citizenship (natural born citizen), or a 14th Amendment citizen at birth as interpreted by Wong Kim Ark, 169 U.S. 649 (1898). The first is a citizen born. The second is naturalized because the alien nationality of one or both parents must be removed by application of the Aliens and Nationality Act, as revised after 1855.

Nevertheless, Wong Kim Ark did not, nor could not, revise Article II’s natural born citizen clause, nor the common knowledge of the framers as to what constituted a ‘natural born citizen,’ or what laws created a British natural born subject if born on U.S. soil.

Therefore, there is no valid interpretation of law that makes Barack Hussein Obama, II a natural born citizen as intended by the U.S. Constitution, Article II, Sec. I, Clause 5.

The Civil Rights Act became a law April 9, 1866 (14 Stat. 27, c. 31), and provided:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.

And this was reenacted June 22, 1874, in the Revised Statutes, section 1992.

The words “not subject to any foreign power” do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.


[2] Wong Kim Ark (1898) is followed law, but in conflict with precedent in Minor vs. Happersett  (1875) as well as legislated act, if not the 14th Amendment itself, specifically ignoring the ‘jurisdiction’ clause, and Sec. 5 reserving enforcement of provisions of the amendment by congress, not the judiciary.

[3]That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom . . .” British Nationality Act, 1772, 1772 (13 Geo. 3) C A P. XXI

[4] “This is apparent from the Constitution itself, for it providesthat “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Minor vs. Happersett, 88 U.S. 162 (1875)

A Timeline of Barack Hussein Obama’s Nationality and Citizenships

January 21, 2010

1) The father, Obama, Sr., was already married to a Kezia in Kenya. Therefore, the marriage to Dunham was void ab initio due to bigamy. This meant Obama, Jr. obtained U.S. nationality by statute through his mother, either through 8 U.S.C. 1401, native birth to a U.S. mother, or 8 U.S.C. 1409, the out-of-wedlock provision.

Attorney Phil Berg claimed the 1409 statute is not applicable. He claims the Obama-Dunham marriage was valid because the United States did not recognize a Luo tribe ‘village’ wedding. However, I beg to differ citing the Hague Conventions. See, http://www.legallanguage.com/resources/treaties/hague/1978-march-14th-convention-2/

However, if the 1978 treaty did not reflect existing laws the U.S. observed in 1961, then the attorney may be correct, that by only a few months Dunham failed to meet post age-14 residency requirements to pass U.S. citizenship on to Barack Obama. This, of course, applies only to a Kenyan birth.

Then, consider the matter of abandonment. The status of legal parent comes into play when the father abandons the family. Obama abandoned Dunham and child almost immediately. Therefore, Dunham’s nationality was significant.

If abandoned and born in Hawaii, for which Obama refuses to offer certified proof, the 14th Amendment and 8 U.S.C. 1401 applied and Obama was automatically a British subject by birth outside of British jurisdiction, and a U.S. citizen by statute.  

 
“FactCheck.org clarifies Barack’s Citizenship

‘When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children…”

2) In most states, Obama, Sr’s impregnation of a 17-year old would have been statutory rape. Marriage of the rape victim voids prosecution. If memory serves, Hawaii’s age limit for statutory rape at that time was 15-years old, so Obama’s only reason for marrying her was to avoid appearances of statutory violation in his applications for scholarships and foreign student aid in states that did have the 18-year old statute.

3) Records show that Obama never moved in with Dunham, or provided any means of support. In fact, he left Hawaii without Dunham and child with the excuse the Harvard scholarship did not provide for his family.

4) Here is the U.S. statute for legal parent. Title 8, U.S.C. 1101(b)(2) “(2) The terms “parent”, “father”, or “mother” mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection, except that, for purposes of paragraph (1)(F) (other than the second proviso therein) and paragraph (1)(G)(i) in the case of a child born out of wedlock described in paragraph (1)(D) (and not described in paragraph (1)(C)), the term “parent” does not include the natural father of the child if the father has disappeared or abandoned or deserted the child or if the father has in writing irrevocably released the child for emigration and adoption.”

You have to read the whole damn statute to find it, but I did.

5) The British Nationality Act requires a child of a British subject born outside British or colonial control to register the child with the British secretary of state within one year, or the child loses British subject status. There is no proof, or reason to believe Obama went to the trouble of registering with Britain a Hawaii-born Obama, Jr. If born in Kenya, Obama would have been registered as a matter of course. The applicable British law is British Nationality Act, 1948, 1948 (11 & 12 Geo. 6.) CHAPTER 56. Part II, Citizenship of the United Kingdom and Colonies. Citizen by Birth or Descent, “(b) that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later . . .”

The law is terribly dense and not fun to read, but I found the applicable subsection if the child was born in Hawaii.

6) Under the laws of the new Independent Kenya, Kenyans had the opportunity to remain British subjects, but had to register with the British secretary of state. This particular law is found in attorney Phil Berg’s research. Therefore, Obama lost British nationality at birth at one-year old, or upon 1963’s Kenyan Independence.

7) Obama, Jr. was born with dual nationalities, but was solely U.S. between the ages of two and six. In 1967 he was derivatively naturalized Indonesian. Again, Phil Berg hired an Indonesian lawfirm to look that up. Dunham’s marriage to Lolo Soetoro and her Indonesian residency made Obama an Indonesian, a nationality he maintained well into his late teens, early twenties. Constitution of Republic of Indonesia, Law No. 62 of 1958, Law No. 12 (1945)

[8] Unbeknownst to Obama, and even though he passed himself off as Indonesian into his early twenties, the 1952 Immigration and Nationality Act automatically restored his U.S. citizenship, which he lost as a minor through his mother’s marriage. All it took was his continuous residency from age 14 through 19.

See the 1952 Immigration and Nationality Act’s (INA) 301(a)(7) and 301(b)’s five-year continuous residency requirement to become a U.S. citizen, http://www.theodora.com/ina_96_title_3.html

This is a tangled web of immorality, fornication, deceit, lawlessness, and laws involving three or four nations. Obama was born a dual national, and lived most of his formative years as a third. He regained U.S. citizenship by a fluke of a law created to prevent minors naturalized by parents losing their U.S. nationality at birth. If he had so much as lived with his mother a summer or two during the required residency period, he would have lost U.S. citizenship, and would have had to formally apply as an adult, which required taking the Oath of Allegiance and Renouncing his Indonesian citizenship.

The ‘natural born citizen’ clause was insisted upon in Article II so that the highest executive office of the land, and the position of Commander in Chief, would not be influenced by foreign nationalities. A U.S. citizen by birth, with no other nationalities, titles of nobility, or nationalities from a foreign father was the only assurance.

For those arguing that ‘native born’ status is sufficient proof, I strongly encourage them to reconsider.

Imagine that were true. Then, a 14th Amendment ‘native born’ citizen at birth from a Mexican illegal alien would be eligible to be president, even if he resided in Mexico most of his early life, just barely meeting the 14-year residency requirement after age 35. I would suppose, then, that a Mariachi band playing ‘Hail to the Chief’ would then be in order?